Judgment dt.6-5-2016
This is a complaint made by one Smt. Ratna Saha wife of Shri Samir Saha of 61/3, Jorabagan Road, P.S. Netaji Nagar, Kolkata- 700 047 against Shri Arup Mukherjee of Bidhan Pally, P.S. Jadavpur praying for a declaration that in terms of the agreement for sale dated 26.9.2013 Complainant is entitled to all the rights describe in Schedule ‘B’ and the declaration that Schedule ‘B’ is incomplete and not in habitable condition and also declaration that developer is not entitled to get the rest amount of Rs.4,50,000/- from petitioner before the flat is made in habitable condition.
Facts in brief are that Complainant entered into an agreement with OP for a flat at the ground floor of about 780 sq. ft. Landlord of the premises entered into development agreement with the OP in the year 2012 and developer started construction.
Complainant entered into an agreement for sale on 26.09.2013 subsequently on 25.10.2013 by a Cheque being no.267025 Complainant paid Rs.2,00,000/- to the OP. Thereafter, Complainant paid Rs.4,00,000/- & Rs.1,00,000/-and again Rs.1,50,000/- on different dates. So, Complainant paid Rs.8,50,000/- in total out of consideration money of 13,00,000/- . OP did not hand over the possession of the flat within time. Before few months Complainant went to the site and learned that the construction work has stopped. Developer told Complainant that there was some problem and so the construction was not taking place. Complainant asked for handing over the possession and for registration of the flat. Developer entered into an agreement for sale with the petitioner’s husband on 24.01.2013 for sale of another flat in another premises in the 3rd floor and received Rs.2,00,000/- but did not construct that flat and so OP entered into this agreement on 26.9.2013.
Suddenly on 15.10.2015 Complainant went to the premises for ascertaining the development of the construction and knew that 144(2) is invoked so Complainant lodged a written complaint before the Jadavpur P.S. Complainant did not receive the possession and registration has also not been done. So, Complainant filed this case.
Notices were served through paper publication and so the case heard ex-parte.
Decisions with reasons
Complainant files affidavit-in-chief and written argument.
Main points for determination is whether the Complainant is entitled to the reliefs as prayed in the complaint petition.
In the affidavit-in-chief Complainant has reiterated the facts mentioned in complaint petition.
The first relief which has been sought by the Complainant is a declaration that the Complainant is entitled to get a flat mentioned in Schedule ‘B’ with all easement right and common rights and facilities of the building by registration of a deed of conveyance in favour of Complainant by the developer.
Here it is pertinent to mention that Complainant has not averred that she is in possession of Schedule ‘B’ flat. Unless she is in possession she does not have any right to seek easement rights including common rights and facilities as mentioned in Schedule ‘B’.
Second prayer is for declaration that Schedule ‘B’ that is incomplete condition and not habitable. This prayer also cannot be granted unless Complainant comes into possession after payment of consideration money.
Third prayer of Complainant is that OP is not entitled to rest amount of Rs.4,50,000/- unless the flat is made in habitable condition. This prayer also appears to be a discretionary relief which a court of equity can grant.
Finally, the prayer of registration of flat in favour of Complainant cannot be granted because she has herself stated that still total payment has not been made.
In the aforesaid facts and circumstances we are of the view that the prayers of Complainant are not in accordance with the provisions of Consumer Protection Act because those are discretionary reliefs which only a court having vested with the jurisdiction of equity is entitled to give. We are afraid that C.D.R.F. are vested with jurisdiction of equity. As such no reliefs be granted to Complainant.
Hence,
O R D E R E D
Complaint and the same is dismissed ex-parte.
